Citing the project owners’ refusal to recognize the COVID-19 pandemic as an emergency, and to recognize the impacts of the pandemic on construction of the Eglinton Crosstown LRT, constructors Crosslinx Transit Solutions (CTS) have initiated legal action against project owners Metrolinx and Infrastructure Ontario.

CTS filed its notice of application with the Ontario Superior Court of Justice on October 8.

In a media statement, the builder says it took the decision to file reluctantly, and “after repeated efforts to work collaboratively with Metrolinx and Infrastructure Ontario failed. Metrolinx's and Infrastructure Ontario's refusal to address COVID-19 impacts could now result in additional LRT project delays and legal costs for Ontario taxpayers.”

The organization estimates the total cost of the COVID-19 pandemic to date to be $134 million—with further costs to come as the province heads towards the second wave.

Work on the Eglinton Crosstown LRT project has been allowed to continue uninterrupted since the COVID-19 pandemic began and the Ontario government declared a state of emergency on March 17. Construction crews have taken careful steps to implement strict distancing, sanitation and contact tracing protocols to ensure the safety of workers and the public on site.

That, however, doesn’t mean the project has been without its share of COVID-related impacts. CTS says several positive cases along with potential exposures have contributed to higher-than-anticipated rates of worker absenteeism for Crosslinx and subcontractor employees.

In March, an entire section of the project was shut down for several days after workers walked off the job due to concerns about COVID-19.

Additionally, a variety of supply chain delays have slowed procurement and the flow of resources. For example, a factory closure in Tunisia delayed delivery of tunnel ventilation control panels causing a delay in installation at the Keelesdale station. Additionally, September slag shortages postponed seven concrete pours that were planned for early October.

Finally, CTS says compliance with COVID-19 protocols has increased costs and risks for its subcontractors and their employees. The consortium has received hundreds of notices from subcontractors requesting relief—for time and money—because of the pandemic.

Phil Verster, the president and CEO of Metrolinx, says CTS’s argument doesn’t hold water. In a statement released the same day, he said the project was rife with productivity problems long before the pandemic broke.

“On February 18, 2020, well before COVID-19 hit us, we already declared that CTS was not going to meet their completion date of September 2021 and that the project was unfortunately going to be delayed well into 2022. Since our announcement, CTS’s performance has not improved, despite our active support,” he wrote. “CTS has achieved their monthly production rates in only four months out of the last 26 months. Since August 2018, CTS has achieved only 72 percent of their planned volume of work.”

In its court filings, CTS is asking the court to review the Eglinton Crosstown Project Agreement and grant a declaration that Metrolinx and Infrastructure Ontario are obligated to declare COVID-19 an emergency as defined in the agreement based on the extenuating and unforeseen circumstances COVID-19 has brought on the LRT project.

The Eglinton Crosstown LRT project is one of the most complicated infrastructure projects in the country. It employs more than 1,500 people and requires the construction and commissioning of a light rail transit system with 25 stations, including 15 underground stations and 10 surface stops, over a dedicated 19 km route (10 km of which will be underground).

CTS says that despite the legal action it is taking, construction will continue. The project is due to open in September 2022.